These shipments have long played a key role in powering the state economy, providing materials for medical supplies, computers and fertilizers, as well as fuels for vehicle fleets. But they also pose the risk of catastrophic spills.

Jolted by a series of oil train explosions nationally, including one in Oregon last month, the state this summer has drawn up a list of what it says are the 25 most hazardous materials shipped on rail in California. It plans to impose a new $45 fee later this year on every rail car carrying one of those materials. The money will be used to ramp up the state’s emergency spill and fire response capabilities.

The state Legislature ordered the fee program after a Governor’s Office of Emergency Services analysis that found significant gaps in California’s ability to deal with spills, especially in rural and remote areas.

The fee plan is disputed by the state’s major railroad companies who say they think it’s illegal.

The top 25 list includes materials that are dangerous to humans either by direct contact or because they are highly flammable. They include ammonia, chlorine, propane, butane, fertilizers, acids, petroleum gases and oils.

“When one of these trains derails, it puts lives, property and the economy at risk,” said State Fire and Rescue Chief Kim Zagaris. “And right now, we don’t have surge capacity to deal with a major spill.”

Because of the secrecy shrouding shipments of hazardous materials, it’s hard to know how big a risk they pose. State safety officials and private shippers refuse to disclose the amount, frequency, routes or timing of hazardous material shipments, citing federal safety regulations and state health and safety law restrictions, as well as concerns about terrorist or other criminal acts.

50 Approximate number of spills in the Roseville railyard in 2015

Even local fire departments typically don’t know in detail what materials are coming through, although they can get some after-the-fact information about hazardous materials that have traveled through their areas, if they request it.

Hazardous materials in train tanker cars can be identified, however, at least generically, by the identification numbers on diamond-shaped placards displayed on the sides of cars.

Shippers also have acknowledged transporting Bakken crude oil and Canadian tar sand oil through Sacramento neighborhoods.

California’s planned $45 per-train-car fee will pay for the creation of 12 specially trained hazmat teams to be spread out geographically near “gap” areas where there is a lack of expertise and equipment to deal with major spills, state Office of Emergency Services officials said.

Most will be in the lower Central Valley, on the coast and in Southern California. One hazmat team will be located in Yuba City, not far from the Feather River Canyon, where trains carrying hazardous materials travel the steep mountainside above a river that provides drinking water to urban areas as well as water for Central Valley farms.

Many larger fire departments already have specially trained hazmat teams. There are four in the Sacramento area, one each stationed in Roseville, Natomas, Carmichael and south Sacramento.

Railroad companies contend the proposed fee is illegal under federal law, which prohibits states from putting any constraints on interstate commerce via rail. Under the state plan, the companies that own the hazardous materials must pay the fee, but railroad companies must collect the fee from them and convey it to the state.

The Union Pacific and BNSF – the two main hazardous materials shippers in California – sent letters to the state last month saying the fee interferes in the railroads’ business dealings with their shipper customers and demanding the state desist.

“These emergency regulations violate federal law; therefore, (California) must abandon the process of adoption,” UP assistant vice president Phillip Christensen wrote. “No state can regulate the rates or charges a railroad collects from its customers. This kind of ‘economic regulation’ is categorically prohibited” by federal interstate commerce law.

UP officials declined to be interviewed for the story. The company sent The Bee an email saying that safety is the railroad’s primary focus when transporting hazardous materials. The email did not say whether the railroad might sue the state to stop the fee.

The American Chemistry Council, which represents hazmat shippers, said its members are concerned that California’s actions could lead to dozens of states imposing rail fees, creating what chemistry council spokesman Scott Jensen calls a confusing “patchwork” of regulations without certainty about how the money would be spent, beyond creation of some hazmat teams.

Dow Chemical regulatory affairs official Dale Backlund said his company would like the state to meet more with the industry to talk about the best approach to conducting emergency response training. “Can we slow down the train and think through the implications of this?” he said.

NO STATE CAN REGULATE THE RATES OR CHARGES A RAILROAD COLLECTS FROM ITS CUSTOMERS.Union Pacific’s Phillip Christensen

Despite such complaints, state Office of Emergency Services officials say they plan to impose the fee later this year, although they expect to continue talking with the railroad companies and shippers about fine-tuning the fee program.

“It is law now,” Zagaris said. “We are following the law.”

The state plans to collect up to $10 million annually from hazardous materials shippers, to be placed in the Regional Railroad Accident Preparedness and Immediate Response Fund. The fund will be capped at $20 million.

Although hazardous materials also are shipped on highways, the fee is being applied only to rail shipments, mainly because the threat of a major spill incident is greater on rail, Zagaris said.

“It is a bigger item for us to deal with, takes a larger response, more surge capacity and it puts the public and environment at more risk,” he said. “That’s not to say, at some point, (the state) won’t come back and try to ID things transported on the road.”

Railroads and hazardous materials shippers argue that the risks of oil and hazmat spills are being overplayed by anti-oil advocates and some community leaders. Very few trains derail, they note, and most hazardous material spills are small. A crude oil train crash in a Canadian town three years ago, though, unleashed a firestorm that killed 47 people, some in their sleep.

A Bee review of the state’s rail spill database found that hundreds of hazardous material spills occur annually. The database represents an incomplete listing, based only on initial reports, not on post-response findings. But it does offer a glimpse at the many types of hazardous materials that run on local rails.

Most spills are small and many happen in railyards around the state, such as the Union Pacific yard in Roseville. There were about 50 reported spills in the Roseville yard in 2015. The largest local spill that year, as initially reported, was 300 gallons of diesel fuel that leaked due to an improperly closed locomotive fuel filter cap. Other small spills around the Roseville yard in 2015 involved butane, oil, liquid petroleum gas, anhydrous ammonia, picoline and sodium sulfide.

Larger spills, though rare, can be devastating to wildlife and rural economies. The most notorious modern rail-related toxic spill in California occurred 25 years ago when a train derailed and spilled 19,000 gallons of the pesticide metam sodium into the Sacramento River near Dunsmuir, killing aquatic life on a 40-mile stretch of the river for years. Rail safety improvements have since been made at a tight rail curve at that spill site.

In Sacramento, several dozen trains cross daily in downtown Sacramento on two main freight lines. A Bee review of trains on those tracks recently found that more than half of the trains included at least a few cars carrying hazardous materials.

One freight line is a north-south route that comes through the region between Yuba City and Stockton and passes through midtown Sacramento between 19th and 20th streets. The other is an east-west route that runs through Roseville and on a berm above downtown Sacramento, through the downtown railyard and through Davis, adjacent to downtown and the university campus.

Sacramento City Fire Department hazardous materials coordinator Jerry Apodaca said the Sacramento region, with four hazmat teams, is well positioned to deal with a potential spill. But he and other local fire officials say they remain on alert, not knowing on any given day what shipments are coming through or when.

“We don’t know what’s in those cars until we get there,” he said.

CALIFORNIA’S LIST

The state wants to impose a $45 fee on rail cars that transport the 25 materials the state considers most hazardous. The list, with the hazard identification number of the materials:

More crude oil was spilled in U.S. rail incidents in 2013, than was spilled in the nearly four decades since the federal government began collecting data on such spills.

Since late 2012, as hydraulic fracturing and tar sands drilling created a glut of oil, the industry has scrambled to transport the fossil fuel from drill sites to the east and west coasts, where it can potentially be shipped overseas to more lucrative markets.

The increase in oil rail traffic, however, has not been matched with increased regulatory scrutiny. Oil trains are not subject to the same strict routing requirements placed on other hazardous materials; trains carrying explosive crude are permitted to pass directly through cities—with tragic results. A train carrying Bakken crude oil derailed in the Quebec town of Lac-Mégantic on July 6, 2013, killing 47 people in the small community.

In the absence of more protective regulations, communities across the country are beginning to take matters in their own hands.

Legal Cases

Earthjustice represents groups across the country, fighting for protections from crude-by-rail:

FAQs: About Crude-By-Rail

Q. What are DOT-111s?

DOT-111s are rail cars designed to carry liquids, including crude oil, and have been in service in North America for several decades. They are prone to punctures, oil spills, fires and explosions and lack safety features required for shipping other poisonous and toxic liquids. As crude production in the United States has surged exponentially in recent years, these outdated rail cars have been used to transport the crude oil throughout the country.

The U.S. and Canadian government recognized decades ago that the DOT-111s were unsafe for carrying hazardous materials, finding that the chance of a “breach” (i.e., loss of contents, potentially leading to an explosion) is over 50% in some derailment scenarios.

U.S. and Canadian safety investigators have repeatedly found that DOT-111s are unsafe and recommended that they not be used for explosive or hazardous materials, including crude oil; however, the U.S. government’s proposal to phase out these rail cars fails to take sufficient or immediate action to protect the public.

Q. What is Bakken crude oil?

Bakken crude refers to oil from the Bakken shale formation which is primarily in North Dakota, where production has skyrocketed in recent years due to the availability of newer hydraulic fracturing (“fracking”) techniques. The increase in the nation’s output of crude oil in 2013, mostly attributable to Bakken production, was the largest in the nation’s history.

Bakken crude is highly flammable, much more so than some crude oils. Today, Bakken crude moves in “unit trains” of up to 120 rail cars, as long as a mile and a half, often made up of unsafe DOT-111s.

Q. Are there alternative tank cars available?

Transporting Bakken crude by rail is risky under the best of scenarios because of its flammability. But legacy DOT-111s represent the worst possible option. All new tank cars built since October 2011 have additional some safety features that reduce the risk of spilled oil by 75%. Even so, safety investigators, the Department of Transportation, and the railroad industry believe tank cars need to be made even safer. Some companies are already producing the next-generation rail cars that are 85% more crashworthy than the DOT 111s. Petitioners support the safest alternatives available, and expect that the ongoing rulemaking process will phase out all unsafe cars.

Q. What steps have U.S. and Canadian governments taken?

The U.S. government recognizes that Bakken crude oil should not be shipped in DOT 111 tank cars due to the risks, but has done shockingly little to limit their use.

In May 2014, the DOT issued a safety alert recommending—but not requiring—shippers to use the safest tank cars in their fleets for shipments of Bakken crude and to avoid using DOT 111 cars. Canada, in contrast, responded to the Lac Mégantic disaster with more robust action. It required the immediate phase-out of some DOT-111s, a longer phase-out of the remainder, and the railroads imposed a surcharge on their use to ship crude oil in the meantime.

In the absence of similar standards in the U.S., the inevitable result will be that newer, safer cars will be used to ship crude in Canada—while the U.S. fleet will end up with the most dangerous tank cars.

Repost from The Oregonian / OregonLive[Editor: The consultant’s connections with BNSF were noted nearly a month ago here and in Curtis Tate’s McClatchy DC report. On November 24 Tate wrote, “The rail spill analysis portion of the Washington state draft document was written in part by three consultants who are former employees of BNSF and its predecessor, Burlington Northern. In addition to the state agency for which they prepared the analysis, their clients include BNSF and the Port of Vancouver.” I understand that the Washington agency that hired the consultant, the Energy Facility Site Evaluation Council, was asked about the possible conflict of interest in advance of publication of Tate’s article, but they never got back to him. Staff at the Energy Facility Site Evaluation Council should have been aware well in advance of the Oregonian story. – RS]

A consulting firm that helped write a report underestimating the risks of catastrophic spills from a proposed Vancouver oil train terminal has worked for two groups that will gain financially if the project moves forward.

Stephen Posner, the Washington energy regulator who approved the company’s hiring, didn’t know about all those connections until The Oregonian/OregonLive told him. But he did not answer repeated questions about whether he would investigate further.

Three of the four authors who wrote the risk analysis for Washington’s Energy Facility Site Evaluation Council are former executives of BNSF Railway Co. The railroad would move oil trains to the Vancouver terminal.

The authors’ company, MainLine Management, lists BNSF as a client on its website.

MainLine, which didn’t respond to repeated queries, recently worked for another project supporter: the Port of Vancouver, which owns the land where the terminal would be built.

Much remains unclear about MainLine’s relationships with BNSF and the port. It is not known whether BNSF is a current MainLine client. It’s also unclear whether MainLine’s past work for the port would constitute a conflict.

Washington law prohibits the energy council from hiring consultants with a significant conflict of interest with a project’s applicant or others involved.

MainLine finished its work for the port before it was hired to analyze the terminal. The port awarded a $121,000 contract to MainLine in April 2013 to analyze part of its freight rail system serving the oil train terminal. A port spokeswoman said the final payment was sent to MainLine Sept. 25, 2014, four months before the firm was hired to analyze oil spill risks.

The relationships raise questions about the thoroughness of Washington’s review of the experts it’s using to independently evaluate the Vancouver oil terminal.

The $210 million terminal proposed by Tesoro Corp. and Savage Services is the highest profile project pending before the Washington energy council.

The small agency is designed to be a one-stop permitting shop for major energy projects, studying their impacts and recommending a decision to Gov. Jay Inslee. The governor has final approval.

Posner, the agency’s manager, approved hiring MainLine. He said he was unaware the firm listed BNSF as a client until The Oregonian/OregonLive told him.

But neither Posner nor an agency spokeswoman, Amanda Maxwell, would commit to inquiring further about whether the company has a current connection with BNSF.

Before MainLine was hired, Posner said he discussed the company with Washington’s lead consultant, Cardno. He said his agency relied on Cardno to vet MainLine’s clients and past work.

How did Cardno review MainLine’s potential conflicts? That’s unclear. Posner told The Oregonian/OregonLive to direct that question to Cardno, which didn’t immediately respond.

Cardno has provided written assurance that its subcontractors, including MainLine, are forbidden to discuss the terminal with any outside party, Maxwell said.

“This written assurance provided by Cardno is the basis for trusting in the credibility of the work being performed,” she said.

When we asked Posner whether he was concerned that MainLine could have a conflict, the spokeswoman, Maxwell, interrupted, saying it was inappropriate for him to comment.

“Without having the information, it’s not something he could put in context,” she said.

The agency should have that knowledge and be able to answer such a question, said Robert Stern, a good government advocate who helped write California’s post-Watergate conflict of interest law. He said the energy agency’s review appeared inadequate.

“Maybe they don’t have any conflicts, but how do you know?” Stern said. “There should be something in writing saying we have no conflicts of interest.”

Both BNSF and the Port of Vancouver stand to benefit financially from the project’s construction. The port estimates netting $45 million in lease revenue from the project over 10 years. BNSF has rallied supporters to send comments to the energy council praising the project, saying its construction would strengthen the rail company’s customer base.

Gus Melonas, a BNSF spokesman, didn’t specifically answer a question about whether MainLine is currently under contract with the railroad.

If built, the Vancouver project would be the Pacific Northwest’s largest oil train terminal, capable of unloading 15 million gallons of oil from four trains daily. The oil would be put on barges and sent to coastal refineries.

It has drawn strong opposition from Vancouver elected officials and environmental groups amidst a string of fiery oil train explosions nationwide since 2013.

The report co-authored by MainLine lowballed those risks. It called a 2013 oil train spill in Aliceville, Alabama the worst on record, using it to analyze impacts of a disaster in the Pacific Northwest. The study said a slightly larger spill is “the most credible or realistic” worst-case scenario.

But a far larger spill has already happened. An out-of-control oil train derailed and exploded in Quebec in July 2013, fueling a raging inferno that killed 47 people and leveled part of a small Canadian town.

The analysis incorrectly said the Quebec accident spilled just 36,000 gallons of crude. Far more did. Canadian safety regulators concluded 1.5 million gallons escaped from tank cars. Much of it burned in the resulting fire.